Transcript
9.The position of the European Union in(other) international organizations:confronting legal and politicalapproaches Knud Erik Jørgensen and Ramses A. Wessel 1 INTRODUCTION The European Union is increasingly engaged in multilateral diplomacy andcontinuously stresses its ambitions in relation to, what it calls, ‘effective multi-lateralism’. 2 Apart from its participation in international regimes in variouspolicy fields, 3 the institutionalization of the role of the EU in the world isreflected in its position in a number of other international organizations. 4 Whereas the legal and political dimensions of the EU’s external relations ingeneral have been given much attention in academic writings, this is less truefor the position of the EU in formal international institutions. Yet, it is at thesefora that a structural role of the EU in global governance becomes most visi-ble. And it is this role that has become more interesting now that it becomes 261 1 The authors thank Ms Mila Aleksic for her research assistance. 2 See for instance the ‘Report on the Implementation of the European SecurityStrategy: Providing Security in a Changing World’, Council of the EU, 11 December2008, p. 1: ‘At a global level, Europe must lead a renewal of the multilateral order’;and the European Security Strategy of 12 December 2003, p. 1: ‘In a world of globalthreats, global markets and global media, our security and prosperity increasinglydepend on an effective multilateral system. The development of a stronger internationalsociety, well functioning international institutions and a rule-based international orderis our objective.’ 3 For instance non-proliferation and export control regimes. 4 Whether the EU itself is an international organization is still open to debate.For arguments pointing to an affirmative answer based on the Union’s legal personal-ity see Wessel, R.A., ‘The Legal Status of the European Union’, (1997) 2 EuropeanForeign Affairs Review 109; Wessel, R.A., ‘Revisiting the International Legal Status of the EU’, (2000) 5 European Foreign Affairs Review 507. clear that many EU (and national) rules find their srcin in decision-makingprocesses in other international organizations. 5 With the entry into force of the Lisbon Treaty, the EU has entered a newphase. No longer is the world confronted with both the European Communityand the European Union as actors on the international stage; since 1 December2009 the European Union acts as the legal successor of the EuropeanCommunity, 6 while maintaining one of its srcinal policy fields: the foreign,security and defence policy. The EU has thus also replaced the Community ininternational institutions. In addition, the Lisbon Treaty increased the numberof references in the new EU Treaty to the role of the Union in the world andto its relationship with the United Nations.Both the position of the EU in other international institutions and the differ-ent academic approaches to the study of the EU’s engagement in this area formthe source of the questions raised by this contribution. Over the years the EUhas obtained a formal position in some international organizations, either as afull member or as an observer. It is generally held that the participation in aninternational organization relates to the participation in its organs;, that is, theright to attend the meetings, being elected for functions in the organ and exer-cising voting and speaking rights. In that sense the term ‘position’is related toa formal influence on the output of the international organization: decisions(often recommendations, on some occasions binding decisions) and conven-tions (international agreements prepared and adopted by an organ of an inter-national organization). 7 The Lisbon Treaty heralds an increase of theengagement of the EU in other international institutions, including the futuremembership of additional international organizations. 8 Both lawyers and political scientists have shown an interest in the role of the EU in other international institutions and fora. Their approaches, however,seem to have been quite different, which may be a reason why combinationsof legal and political approaches in this field are scarce. Lawyers have atendency to focus on formal competences and have mainly restricted them- 262 European foreign policy 5 See Follesdal, A., Wessel, R.A. and Wouters, J. (eds), Multilevel Regulationand the EU: The Interplay between Global, European and National NormativeProcesses (Leiden, Boston: Martinus Nijhoff Publishers 2008). 6 See Article 1 Treaty on European Union: ‘The Union shall be founded on thepresent Treaty and on the Treaty on the Functioning of the European Union […]. Thosetwo Treaties shall have the same legal value. The Union shall replace and succeed theEuropean Community.’ 7 Cf. Frid, R., The Relations between the EC and International Organizations (The Hague: Kluwer Law International 1995). 8 See Article 6 TEU, which provides that the EU shall accede to the EuropeanConvention for the Protection of Human Rights and Fundamental Freedoms, which inthe current situation calls for a membership of the Council of Europe. selves to the external competences of the (former) European Community. 9 Atthe same time political analyses have focused on the EU and multilateralismin a broader context, with a particular focus on the role of the MemberStates. 10 So far, the different approaches and main findings have not beencompared, which in our view would be a first step in a possible search for aconfrontation of research outcomes. We believe that such confrontation of legal competences and political performance may offer new insights into the(dis)advantages of a separate position of the EU in international organizations.This contribution therefore aims to answer the question how lawyers and polit-ical scientists study the position of the EU in other international institutionsand to what extent legal competences related to the position of the EU inanother international institution have an impact on its political performance.With the further development of the EU’s external relations (for instancereflected in the newly established EU External Action Service 11 ), thisconfrontation of legal and political findings may be helpful in understandingthe structural position and role of the EU in global governance.The following section first of all aims to civer the main legal provisions inrelation to the position of the EU in international organizations. It thus revealsthe main questions raised by lawyers who study this part of EU external rela-tions law. The third section gives an overview of the key perspectives offeredby political science on the position of the EU in international organizationsand of the questions studied by that discipline. Thus, both sections also addressthe substantive issues related to the topic. They end with a summary of themain findings, which are subsequently confronted in the fourth section. That,concluding, section is also used to present some themes for a possible multi-disciplinary research agenda in this area. The EU in (other) international organizations 263 9 See for instance Frid, op. cit. , p. 120; Sack, J., ‘The European Community’sMembership of International Organizations’, (1995) 32 Common Market Law Review 1127. 10 See for instance Elgström, O. and Smith, M. (eds), The European Union’s Roles in International Politics: Concepts and Analysis (London: Routledge 2006),Laatikainen, K. and Smith, K. (eds), The European Union at the United Nations: Intersecting Multilateralisms (Basingstoke: Palgrave 2006). 11 See for instance Crowe, B., The European External Action Service: Roadmap for Success (London, Chatham House 2008); and Vanhoonacker, S. and Reslow, N.,‘The European External Action Service: Living Forwards by UnderstandingBackwards’, (2010) 15 European Foreign Affairs Review 1. ALEGALPERSPECTIVE ON THE POSITION OF THE EUIN OTHER INTERNATIONALORGANIZATIONS Treaty Competences Related to the Participation of the EU inInternational Organizations As indicated above, legal analyses in the area of the EU’s external relationsshow a strong focus on formal competences. Thus, studies related to the posi-tion of the EU in other international organizations mainly aim to investigate –on the basis of an analysis of Treaty provisions, international agreements anddecision-making procedures – what the EU and its member states can orshould do. Quite often, case law is needed to interpret unclear or conflictingrules and principles. 12 For lawyers, the Treaties are the alpha and the omega: they started thewhole process of European integration and ultimately define its limits in termsof competences. The Treaties are therefore also the starting point for an analy-sis of the EU’s engagement in international institutions. The two new (post-Lisbon) EU Treaties – the Treaty on European Union (TEU) and the Treaty onthe Functioning of the European Union (TFEU) – deal with the position of theEU in other international organizations in various ways. Generally, the possi-bility or need for the EU to occupy a separate position in another internationalorganization depends on two factors: first, the division of competencesbetween the EU and its Member States in the particular issue area; and,second, the statute of the international organization. As only few internationalorganizations allow for other international organizations to become a fullmember, one would assume the second factor in particular to stand in the wayof an extension of the Union’s role based on the further development of itsexternal relations. At the same time, however, internal struggles betweenMember States or between Member States and EU institutions may form anobstacle to the accession of the EU to an international organization. Thus, evenin areas where the EU has extensive competences, the EU may be barred fromfull participation in the global decision-making process (cf. the InternationalMaritime Organization (IMO), the International Civil Aviation Organization(ICAO), the River Rhine Commissions, the International Energy Agency, theexecutive board of the UN High Commissioner for Refugees (UNHCR)) or inbodies under the UN Convention on the Law of the Sea (UNCLOS). 13 264 European foreign policy 12 An extensive analysis of external relations (case) law may be found inKoutrakos, P., EU International Relations Law (Oxford: Hart Publishing 2006), andEeckhout, P., External Relations of the European Union: Legal and ConstitutionalFoundations (Oxford: Oxford University Press 2005). 13 See for more complete surveys of the participation of the EU in international Nevertheless, from a legal perspective, the need for a formal role of the EU inother international organizations is obvious whenever the EU has a competencerelated to the objectives and functions of the other international organization. Thisholds true in particular for areas in which the EU enjoys an exclusive compe-tence, but seems equally valid when the competence is shared with the MemberStates. However, despite an active role of the EU in international organizations inpractice, one will look in vain for an explicit legal competence in the treaties. Theabsence of a clear and explicit competence means that the participation in (andthe membership of) international organizations is based on implied powers only,which find their source in the general competences the Union enjoys in the differ-ent policy fields. Thus, the Union’s membership of the Food and AgriculturalOrganization (FAO) is based on the Articles 43 TFEU (agriculture and fisheries),207 TFEU (commercial policy) and 209 TFEU (development cooperation). 14 What comes closest to a competence-conferring provision is Article 211 TFEU:‘Within their respective spheres of competence, the Union and the Member Statesshall cooperate with third countries and with the competent international organi-sations.’That this ‘cooperation’may also lead to the establishment of legal rela-tionships can be derived from the provisions creating a competence for the Unionto conclude international agreements. Thus, Article 216(1) TFEU provides forinternational agreements to be concluded ‘with one or more third countries orinternational organizations’and Article 217 TFEU allows for association agree-ments to be concluded with both states and international organizations. 15 So-called ‘constitutive agreements’by which new international organizations arecreated, or accession agreements to acquire membership of an international orga-nization, are not excluded. In fact, the European Court of Justice established thatthe European Community’s competences in the field of external relationsincluded the power to create new international organizations. 16 Both the The EU in (other) international organizations 265organizations: Hoffmeister, F., ‘Outsider or Frontrunner? Recent Developments underInternational and European Law on the Status of the European Union in InternationalOrganizations and Treaty Bodies’, (2007) 44 Common Market Law Review 41; alsoHoffmeister, F. and Kuijper, P.J., ‘The States of the European Union at the UnitedNations: Institutional Ambiguities and Political Realities’in Hoffmeister, F., Wouters,J. and Ruys, T. (eds), The United Nations and the European Union: An Ever Stronger Partnership (The Hague: T.M.C. Asser Press 2006) p. 9. 14 See in general on EU–FAO relations: Pedersen, J.M., ‘FAO_EU Cooperation:An Ever Stronger Parnership’, in Hoffmeister, Wouters and Ruys, op. cit. , pp. 63–91. 15 See for the procedure Arts. 218 and 219(3) TFEU. 16 Opinion 1/76 [1976] ECR 1977. The binding force of decisions of those orga-nizations within the EU legal order raises a number of interesting legal question. Seeon this issue for instance Martenczuk, B., ‘Decisions of Bodies Established byInternational Agreements and the Community Legal Order’, in Kronenberger, V. (ed.), The European Union and the International Legal Order (The Hague: T.M.C. AsserPress 2001) p. 141.
